1. Introduction

Development is not a new topic, and discussions have been going on since the beginning of the 20th century. It occupies the attention of the most diverse fields of science and their researchers, especially because of the results and impact on lives and interpersonal relationships, such as medicine, the economy, the media, and others. In this article, the Law and its interfaces with sustainable development, which prima facie has the dignity of the human person and the environment as its limits, but we know that such a statement is presented in open themes, and for this reason, the unpredictability of possible results, of which we highlight the use of Artificial Intelligence – AI and the need for its regulation.

For years, development has encountered ethical and legal limitations, and growth cannot be based solely on the economic aspect and at any cost but must be the opposite, i.e. bring the benchmark of sustainability into decision-making. In this context, this article seeks to point out the discussions surrounding scientific and technological advances in the use of Artificial Intelligence. The intention is not to exhaust them, but to point out the existence of limitations established by the 1988 Federal Constitution and the commitments made in the 2030 Agenda, which is sufficient reason to regulate their use. 

It is claimed that the development and use of Artificial Intelligence is subject to areas of constitutional protection, including the protection and guarantee of fundamental rights, those established by the economic and financial order, and the limits and duties deriving from the right to communication. Therefore, its use cannot be indiscriminate and without reference to fundamental human rights, since Constitutional Supremacy must always appear in all decision-making in the Brazilian state.

We believe that the regulation of the use of Artificial Intelligence must follow the constitutional parameters set out above, which necessarily leads to looking at the Constitution from a human rights perspective, always with the dignity of the human person as the greatest limitation derived from the Universal Declaration of Human Rights, 1948 and guiding the 2030 Agenda, Sustainable Development Goals, as the primary reference for scientific and technological advances, in this case, Artificial Intelligence. 

In this context, we are also faced with ethical and legal limits for scientific and technological advances in the use and advancement of Artificial Intelligence, both as guides for the duties and responsibilities of those who will make such technology available, which is necessarily subject to such limitations as a form of elevation of human dignity. This article uses the deductive method and the analysis of normative, ethical, and legal documents.  

2. Artificial Intelligence: ethical and legal limits

More than twenty years ago, we had a representation of the reality of life, augmented by a soap opera, “The Clone (O Clone)”, 2001, which, alongside the news and criticism widely publicized at the time, introduced Brazilians to discussions about human cloning. They were dealt with by the Law at various levels of legal education, whether at the undergraduate or postgraduate level since the concerns involved a recurring theme in the Academy, namely the existence of limitations to science. 

As it turns out, news and fiction still find very fertile ground with scientific and technological development, as we have had representativeness in fiction, in a recent novel, “The Path (Travessia)”, 2023, and for a long time in cinema, in classics such as “Terminator”, “Matrix”, “The Bicentennial Man”, “I, Robot”, and the one entitled “Artificial Intelligence”, among others, which repeatedly brought up the discussion about the application of Artificial Intelligence, and also, in the case of fiction, the severe consequences for its improper and unlimited use.

Discussions about machines or robots replacing humans have existed since the 1950s and have underpinned all the experiments that have followed, with demonstrations, in some cases, of the overcoming of human intelligence, as is the example of board games, in which, through algorithms solves a given problem. Artificial Intelligence, the use of algorithms and deep learning, enables machines to develop human characteristics, in particular, the use of the human brain to create artificial neural networks.

The analysis of the use of artificial intelligence is necessary and, due to the great advances that exist, the confrontation of the limits to its use, and its regulation, as there are countless benefits experienced today, including for those who work in Law and in several other situations of social life, but based on the examples cited, we are not able to respond to the unlimited use of such scientific advances, whether in the case of cloning, in “The Clone (O Clone)”, or in deep fake, in “The Path (Travessia) “. Examples in everyday life shows recurring frauds due to failures in the security and protection of sensitive data that are improperly used for purchases and even payroll loans, manipulation of information and public opinion, among others, are decisive in affirming the need to establish the limits to their use.

The affirmation of the dignity of the human person as a fundamental principle and foundation of the Brazilian state is the ethical benchmark with the status of a constitutional norm-principle, inspired by Kantian thinking, which guides all human behavior. Universal action and the human being as the ultimate end of all human actions are the north of ethical limitations, but they have, in the Brazilian State, the legal nature of a fundamental constitutional principle, a structuring norm, as inspired by the Universal Declaration of Human Rights, 1948, and the international treaties that came from it.

The question that arises is whether those at the forefront of the scientific development of Artificial Intelligence should recognize such categorical imperatives and consequently move away from the ethical upheavals of today, which don’t seem to be concerned with the existence of intrinsic limits to the human condition. We are referring to ethics as the science of morality, of the behaviors that are expected in a community and at the very least identify us as human beings and culturally appropriate to a society in adopting them.

Brazil has a bill pending in the Federal Senate that imposes limits on artificial intelligence, to achieve responsible use of the internet and artificial intelligence, which leads to the obligation to take care of the fundamental rights  and ensure a safe environment. Therefore, privacy, intimacy, protection of sensitive data, honor and image, author’s rights, consumer protection, and transparency in the use of algorithms are issues that must certainly be considered, in other words, it is understood that the legislation must embrace the protection of fundamental human rights. 

On 07.11.2023, the Organization for Economic Cooperation and Development (OECD) stated that 27% of jobs are high-risk professions due to the use of artificial intelligence, which requires a focus on people. Although Brazil is not a member of the organization, it has a Framework Cooperation Agreement, signed in 2019, which leads it to affirm protective regulation with a view to fundamental human rights. 

3. Regulation of Artificial Intelligence: a path to a dignified life and social justice

Countless offers of products and services are supported by Artificial Intelligence arising from the development of advanced technologies and innovation that use electronic media, the internet, to support them, and have generated discussions and questions that reach everyone, especially the countries that are members of the Organization of the United Nations – UN in the search for development that must be guided by dignified life and sustainability. To talk about Artificial Intelligence is to think about development responsibly, since there are, alongside the constitutional bases, all the International Human Rights Treaties that must be made explicit by the signatory countries through the assumption of duties both for individuals and at a collective level, whether they are private individuals or members of the Public Administration.

The System of Constitutional Norms is based on the ethical reference point of the dignity of the human person, which is therefore an integral part of the fundamental principles constitutional and concretizing human rights, which are reaffirmed in other constitutional references, especially those described as fundamental objectives of the Brazilian State and those relating to the Economic and Financial Order, namely the reduction of inequalities, a dignified life, and social justice.

The regulation of the use of Artificial Intelligence must be thought out with respect for these constitutional limits that seek to remove inequalities, and non-discrimination that excludes and removes solidarity. It is based on the foundations of the Economic and Financial Order in the pursuit of a dignified life and social justice guided by various principles, including consumer protection, the reduction of regional inequalities, and the pursuit of full employment, among others.

Reconciling so many references can only be achieved by looking at fundamental human rights and, as is already happening in some countries, the affirmation of the limits and even the necessary stagnation of the development of artificial intelligence for the implementation of both the development reference by the United Nations, always focused on and centered on the human person, as well as the recognition of being responsible, in addition to being a beneficiary of it. Recognizing rights and duties with equal importance is what makes it possible and enables the eradication of extreme poverty, the reduction of inequalities, and sustainable and inclusive growth with the maintenance and creation of jobs, which is in line with the Sustainable Development Goals – SDGs 1, 8, and 10.

The regulation of Artificial Intelligence must be guided by a state public policy aimed at implementing the objectives of sustainable development and educating for sustainable growth while respecting people’s dignity and inclusive actions that lead to solidarity.

4. Fundamental Rights are also limits to the use of Artificial Intelligence

The constitutionalizing of fundamental rights and guarantees as norms that have immediate application are part of the reason for the existence of the Constitution and the Democratic Rule of Law, classified as immutable clauses and are part of the theory that justifies the need for the regulation of artificial intelligence and supports that sustain it, electronic media or the internet.

Therefore, alongside the analog media that remain, including radio and television, the existence of electronic or digital media no longer occupies closed and restricted niches and has come to accompany people daily. This perception ceased to be limited during the pandemic period, in which the possibility of social experiences migrated peremptorily to the digital environment and major conflicts and abuses were exposed, demonstrating that the lack of respect for existing limits, determined exclusion, negative discrimination, cancellation and the commission of crimes by several people, which combined with the lack of access to many.

Big Tech cries out for the protection of freedoms, but how can this be reconciled with the protection and effectiveness of fundamental rights if there are no clear limits on the use of such means and the Artificial Intelligence they support? Especially in the face of content that is formatted according to the ethical disorders of post-modernity that converge towards the over-exaltation of economic power and political power, to the point where lies become pseudo-truths or post-truths in the pursuit of power.

It bears repeating that the norms defining fundamental rights have immediate application and there is no way to maintain that freedom of of expression is an authorizer for the commission of abuses and deviations. Contrary to what big tech wants, there are limits to all rights, even those that are fundamental, in this case expression, information and opinion. On the contrary, all fundamental rights are not absolute and are subject to limitations, one of the characteristics that individualize them and allow, on a concrete level, their applicability, to be limited.

It is understood in this study that the existing limits to journalistic information are added to those of the mass media, Radio, and TV, as well as respect for the principles of broadcasting. In this context, both respect for the fundamental rights expressed in Article 220, δ 1, and Article 221 and its subsections, both of the 1988 Constitution, are express limits that must guide the regulation of mass media that support the freedoms of expression of thought that allow the expression and use of Artificial Intelligence that is supported by electronic media, the internet.

Alongside these mandates expressly described in the Constitution that determine limits to the use of mass media, in this case, electronic media, which, provide support and support to convey the various manifestations of thoughts, as they reach an indeterminate number of people , are subsumed under the legal regime described in the Social Communication chapter and such regulation derives from the Constitution and supports the democratic condition of information which, primarily, must be with a view to human rights and human dignity and manifestations of an educational and informative nature.

There are postulates, by their nature inescapable, that must guide the entire activity of the interpreter of the Constitution and it is always important to highlight them, namely, Constitutional Supremacy, Unity, and the consequent harmonization of its norms are imperatives that lead to results that are according to the Constitution and the Democratic Rule of Law, that is, the regulation of electronic media and the use of Artificial Intelligence according to the constitutional bases described is the path that represents the will of the Constitution and not the will of power, as teaches Hesse.

Still, in the context of the protection of fundamental rights, the consumer protection and defense system and the protection of personal data are equally important. This ratifies the intelligence of the guiding principles of the Consumer Protection Code, rules of public order and social interest, therefore, applied ex officio and oriented to comply with the references that individualize the consumer relationship, marked by the objective good faith of suppliers and the intrinsic vulnerability of consumers.